The main legal point established in the judgment is that the question of fraud and nullity of an order can only be determined in a civil suit and not in proceedings under the B.T. & A.L. Act, 1948.

1. I have heard Mr. Shinde and Mr. Kulkarni, Advocate for the Petitioner and Mr. Londhe with Advocate Chatge, Advocate for the Respondents. As is usual with proceedings under the Bombay Tenancy and Agricultural Land Act, 1948 (for short, B.T. & A.L. Act, 1948), even this litigation has a checkered history, though factual controversy involved in this Petition lies in a narrow compass.

BRIEF RESUME OF FACTS:

2. One Andappa Walekar was admittedly owner of land bearing Gat No. 98 of village Tillehal, Taluka South Solapur, District Solapur. The Petitioner Tukaram Chopade is the son of real sister of said late Andappa Walekar. On 19th December, 1975 the Petitioner submitted an Application purported to be an Application under Section 32 (O) r/w Section 32G of the B.T. & A.L. Act, 1948 before the Tahasildar South Solapur. On the same day the statement of the Petitioner and late Andappa were shown to have been recorded without issuing any notice on the Application and an Order was passed on the same day thereby declaring that the Petitioner has purchased ½ northern portion of land bearing Gat No. 98 to the extent of 2 Hector 2 R from late Andappa. It is an admitted position that this order was however, not challenged. It is also an admitted position that late Andappa was an illiterate person whereas the Petitioner was employed in Indian Railways.

3. In the year 1984 late Andappa filed Tenancy Application No. 107 of 1984 under Section 31, 32R and 33-B of the Act before the Additional Tahasildar and ALT, South Solapur. The Application was filed on the basis that the order of statutory purchase in respect of northern ½ portion of Gat No. 98 was obtained on the basis of false documents and that the Petitioner is not cultivating the said land personally and gives land to other persons as the Petitioner was serving at Miraj Railway Station. The ALT issued notice of this Application and the Petitioner filed reply. Evidence was led. Ultimately by Judgment and Order dated 17/11/1984, the ALT and Additional Tahasildar, South Solapur dismissed the Tenancy Application No. 107 of 1984.

4. Aggrieved by this Order late Andappa filed Tenancy Appeal No. 8 of 1985 before the S.D.O., Solapur. By Judgment and Order dated 20th August, 1986, the learned SDO allowed the said Appeal and remanded the case to the ALT for fresh hearing. The S.D.O. observed that the ALT should also see whether the Certificate issued under Section 32M was correct or not.

5. After remand the Tahasildar and ALT again decided the Tenancy Case No. 107 of 1984. The ALT came to the conclusion that without issuing any notice on the Application under Section 32-O of the Act, the Application was decided within one day, and that the statement of the landlord was recorded before the ALT initially on 12/12/1975, thereafter Application was filed on 19/12/1975, statement of Petitioner was recorded and again additional statement of late Andappa was recorded. The ALT also proceeded on the basis that on that day the land had been mortgaged with the Maharashtra State Cooperative Land Development Bank, Solapur which Bank was the owner as on that day and the loan was repaid on 12/1/1982. In short, the ALT held that the entire proceedings under Section 32-O was vitiated and Certificate issue under Section 32-M was not correct. The ALT directed the Petitioner to hand over possession of the northern ½ portion of the land.

6. Aggrieved by this order, the Petitioner filed Tenancy Appeal No. 29 of 1988 before the S.D.O. The learned S.D.O. held that the order of the ALT to the extent it set aside the original order dated 19/12/1975 was illegal and without jurisdiction. Hence by Judgment and Order dated 22/7/1989 the learned S.D.O., Solapur allowed Tenancy Appeal No. 29 of 1988.

7. Aggrieved by this Order late Andappa filed Tenancy Revision Application No. 218 of 1989 before the MRT, Pune. The learned Member of the M.R.T., Pune has allowed the said Revision Application by impugned Order dated 31st